United States Court of Appeals

for the Fifth Circuit

No. 20-11032

Continental Automotive Systems, Incorporated, a 

Delaware corporation, 

Plaintiff—Appellant,

versus

Avanci, L.L.C., a Delaware corporation; Avanci Platform 

International Limited, an Irish company; Nokia 

Corporation, a Finnish corporation; Nokia of America 

Corporation, a Delaware corporation; Nokia Solutions and 

Networks U.S., L.L.C., a Delaware corporation; Nokia 

Solutions and Networks Oy, a Finnish corporation; Nokia 

Technologies Oy, a Finnish corporation; Optis UP Holdings, 

L.L.C., a Delaware corporation; Optis Cellular Technology, 

L.L.C., a Delaware corporation; Optis Wireless Technology, 

L.L.C., a Delaware corporation; Sharp Corporation, a Japanese 

corporation, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CV-2933

United States Court of Appeals

Fifth Circuit

FILED

February 28, 2022

Lyle W. Cayce

Clerk

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Before Stewart, Ho, and Engelhardt, Circuit Judges.

1

Carl E. Stewart, Circuit Judge:

This case is a new installment in a long-running battle between holders 

of patents essential to wireless standards and companies that make products 

incorporating those standards. Continental Automotive Systems, Inc.

(“Continental”), an auto-parts supplier, brought suit in the Northern 

District of California against several standard-essential patent holders and 

their licensing agent, claiming violations of federal antitrust law and 

attendant state law. After the case was transferred to the Northern District 

of Texas, it was dismissed at the pleading stage. Continental appealed.

For the reasons that follow, we VACATE the judgment of the district 

court and REMAND with instructions to DISMISS for lack of standing.

I. FACTUAL BACKGROUND

Plaintiff-Appellant Continental is a leading provider of automotive 

components, including connectivity products that utilize 2G, 3G, and 4G 

cellular standards.2 One such product is the telematics control unit 

(“TCU”), a device that is embedded into the car and provides wireless 

connectivity. Today, TCUs allow many of us to stream music, navigate to 

destinations, and call for emergency assistance directly from our vehicles.

They are widely anticipated to facilitate an even greater array of capabilities 

in tomorrow’s connected car industry.

1 Judge Ho would affirm the judgment of the district court that Continental 

sufficiently alleged Article III standing but failed to state a claim under the Sherman Act.

2 A technical standard is “a specification of the design of particular goods or 

components . . . needed to ensure compatibility.” John Black et al., Oxford 

Dictionary of Economics (3d ed. 2009). A cellular standard is a specification that 

facilitates compatibility between devices within a cellular network.

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Certain Nokia Corporation entities, PanOptis Equity Holdings 

entities, and Sharp Corporation (collectively, “Patent-Holder Defendants”) 

all claim to own or license patents essential to the 2G, 3G, and 4G cellular 

standardsset by standard-setting organizations (“SSOs”). These patents are 

known as standard-essential patents (“SEPs”) since suppliers like 

Continental could not create standard-conforming products like TCUs 

without infringing them. 

Given the importance of SEPs, and the steep cost for suppliers to 

switch standards, standardization can enable SEP holders to demand more 

for the right to use their patents than those rights are worth. This conduct is 

known as patent hold-up.3 To mitigate the risk that SEP holders will extract 

more than the fair value of their patented technologies, many SSOs require 

them to agree to license their patents on fair, reasonable, and 

nondiscriminatory (“FRAND”) terms for incorporation into a standard.4

Notably, SSOs do not establish FRAND licensing rates; rather, they are set 

in negotiations between SEP holders and licensees after the standard-setting 

process is complete. Here, under contracts they have with SSOs, PatentHolder Defendants are committed to license their cellular SEPs on FRAND 

terms. 

3 See, e.g., Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1209 (Fed. Cir. 2014) 

(“Patent hold-up exists when the holder of a SEP demands excessive royalties after 

companies are locked into using a standard.”); U.S. Dep’t of Just. & Fed. Trade 

Comm’n, Antitrust Enforcement and Intellectual Property 

Rights: Promoting Innovation and Competition 5 (2007) (“The ability of 

patentees to demand and obtain royalty payments based on the switching costs faced by 

accused infringers, rather than the ex ante value of the patented technology compared to 

alternatives, is commonly called ‘hold-up.’”).

4 Some courts and commentators use “RAND” as an “alternative, legally 

equivalent abbreviation.” Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 877 n.2 (9th Cir. 

2012).

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Meanwhile, to facilitate patent licensing, many SEP holders enter into 

agreements with entities that act as licensing agents for a patent pool.

5 Here, 

Patent-Holder Defendants and thirty-seven non-parties to this suit entered 

into a patent licensing agreement (the Master License Management 

Agreement, “MLMA”) with Avanci.

6 Avanci acts as the licensing agent for 

a pool of SEPs incorporated into cellular standards for connected devices—

namely, vehicles. For a flat fee per device, it offers a “one-stop license” for 

connected cars. Avanci, https://www.avanci.com (last visited Feb. 25, 

2022).

At the heart of this case is the interplay of the FRAND and MLMA 

commitments, and whether this interplay presents an injury to Continental 

that can be reviewed and remedied. Since all of the SEPs for which Avanci 

acts as the licensing agent are encumbered by FRAND obligations, Avanci is 

similarly obligated to license them on FRAND terms. Yet under the MLMA, 

Avanci may sell licenses only to car manufacturers or original equipment 

manufacturers (“OEMs”). OEMs are downstream from Continental in the 

supply chain because they include connectivity products in their vehicles.

But the MLMA permits members of the pool to individually license their 

SEPs beyond OEMs to suppliers like Continental at FRAND rates. 

According to Continental, it sought SEP licenses from both Avanci 

and individual Patent-Holder Defendants (collectively, “DefendantsAppellees”) at FRAND rates to no avail, in violation of the SEP holders’ 

FRAND commitments. According to Defendants-Appellees, licenses were 

5 A patent pool “aggregate[es] intellectual-property rights that are the subject of 

cross-licensing, whether they are transferred directly by the patentee to a licensee or to 

some vehicle specifically established to administer the aggregated interests, such as a joint 

venture.” Patent Pool, Black’s Law Dictionary (11th ed. 2019).

6 “Avanci” collectively refers to Avanci, LLC and Avanci Platform International 

Limited, both of which are parties to this lawsuit. 

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available to Continental on FRAND terms from individual SEP holders, and

Continental does not need SEP licenses since Avanci licenses the OEMs that 

incorporate their products.

II. PROCEDURAL HISTORY

Continental sued Avanci and Patent-Holder Defendants in the 

Northern District of California. In its amended complaint,7 Continental

argued that refusals to directly sell it a license on FRAND terms constituted 

not only a contractual breach but also anticompetitive conduct in violation of 

the Sherman Antitrust Act of 1890 (“the Sherman Act”), 15 U.S.C. §§ 1, 2.

It further alleged violations of related state law, namely breach of contract, 

promissory estoppel, and unfair competition law. Finally, Continental sought 

declaratory relief as to Avanci and Patent-Holder Defendants’ FRAND 

obligations and injunctive relief as to their unlawful conduct. It did not seek 

damages.

Shortly after Continental filed its amended complaint, Avanci and 

Patent-Holder Defendants moved to transfer venue to the Northern District 

of Texas under 28 U.S.C. § 1404(a). While that motion was pending, Avanci 

and Patent-Holder Defendants moved to dismiss Continental’s amended 

complaint. Judge Lucy H. Koh then transferred the case, and Chief Judge 

Barbara M. G. Lynn (hereinafter, “the district court”) ordered Avanci and 

Patent-Holder Defendants to file a revised motion to dismiss, accounting for 

Fifth Circuit law as well as “basic issues of standing and whether 

[Continental] has suffered an injury that can be reviewed at this juncture.”

In their revised motion, Avanci and Patent-Holder Defendants sought 

dismissal under Rules 12(b)(1) and 12(b)(6) for lack of subject matter 

jurisdiction and for failure to state a claim upon which relief can be granted, 

7 Continental amended to add Sharp as a defendant after Sharp sued an OEM 

customer of Continental’s for patent infringement. 

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respectively.8 See FED. R. CIV. P. 12(b)(1); 12(b)(6). The district court 

accepted one of Continental’s theories of injury for the purposes of 

constitutional standing, but it dismissed with prejudice Continental’s 

Sherman Act claims for lack of antitrust standing and, alternatively, for 

failure to plausibly plead certain elements. It then declined to exercise 

supplemental jurisdiction over Continental’s remaining claims pursuant to

28 U.S.C. § 1367(a). Continental timely appealed. 

III. STANDARD OF REVIEW

“[W]e always have jurisdiction to determine our own jurisdiction.”

Tex. Democratic Party v. Hughs, 997 F.3d 288, 290 (5th Cir. 2021). “Standing 

is a component of subject matter jurisdiction.” HSBC Bank USA, N.A. v. 

Crum, 907 F.3d 199, 202 (5th Cir. 2018). “The jurisdictional issue of 

standing is a legal question for which review is de novo.” Id. (citation 

omitted).

IV. DISCUSSION

Our court must address any jurisdictional issue before reaching the 

merits of a plaintiff’s claim. See Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83, 94–95 (1998). “Article III of the Constitution limits the 

jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Susan B. 

Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S. Const.

art. III, § 2). Given this limitation, a plaintiff is required to demonstrate “the 

irreducible constitutional minimum of standing” to bring suit. Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 560 (1992). 

8 They also moved to dismiss under Rule 12(b)(2) for lack of personal jurisdiction,

but the district court did not assess the issue and none of the parties appealed that decision.

See Fed. R. Civ. P. 12(b)(2).

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To establish Article III standing, a plaintiff must allege that it has 

“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged 

conduct of the defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Ortiz v. Am. Airlines, Inc., 5 F.4th 622, 628 (5th Cir. 2021)

(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). “An injury in fact 

is ‘an invasion of a legally protected interest which is (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or hypothetical.’” 

Wilson v. Hous. Cmty. Coll. Sys., 955 F.3d 490, 495 (5th Cir. 2020) (quoting 

Lujan, 504 U.S. at 560). “A claim of injury generally is too conjectural or 

hypothetical to confer standing when the injury’s existence depends on the 

decisions of third parties not before the court.” Little v. KPMG LLP, 575 F.3d 

533, 540 (5th Cir. 2009) (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 

26, 41 (1976)).

Continental allegestwo theories of injury in fact. Neither are adequate 

to prove the supplier has Article III standing, let alone that it has antitrust 

standing or has suffered harm flowing from an antitrust violation.

A. Indemnity Obligations

Continental’s first theory of injury is that “should [Avanci and PatentHolder Defendants] succeed in procuring . . . non-FRAND license[s] 

from . . . OEM[s,]” the royalties owed on those licenses “risk being passed 

through to . . . Continental” via indemnity agreements. The district court 

determined that this averred harm was insufficient to confer Article III 

standing since it is “not . . . actual or imminent.” It emphasized that

Continental’s amended complaint did not allege that OEMs have been or 

likely will be forced to take non-FRAND licenses from DefendantsAppellees, or that those OEMs have or likely will pass non-FRAND costs 

onto Continental through indemnity obligations. Thus, according to the 

district court, Continental pled a mere “potential of [] being injured.”

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We agree. As Avanci and Patent-Holder Defendants observe, this

alleged injury is “doubly speculative”: Continental would not be harmed 

unless OEMs first accepted non-FRAND licenses and then invoked their 

indemnification rights against Continental. Here, the pleadings do not 

establish that OEMs have accepted such licenses and invoked such rights. 

Because Continental’s “claim of injury depends on several layers of 

decisions by third parties—at minimum, [OEMs]”—it “is too speculative to 

confer Article III standing.” See Little, 575 F.3d at 541; see also Warth v.

Seldin, 422 U.S. 490, 499 (1975) (“[T]he plaintiff generally must assert his 

own legal rights and interests, and cannot rest his claim to relief on the legal 

rights or interests of third parties.”); cf. Millennium Petrochems., Inc. v. Brown 

& Root Holdings, Inc., 390 F.3d 336, 343 (5th Cir. 2004) (“[A]n indemnity 

claim does not . . . become actionable[] until all of the potential liabilities or 

damages . . . become fixed and certain.”).

Continental seeks to bolster the adequacy of its allegations by 

referencing documents that the district court requested it submit to 

“convince [the court] that [Continental] ha[d] [suffered] potential injury.” 

The district court ultimately made no substantive findings as to whether 

Continental’s submissions were responsive or as to their contents, which it

did not consider in connection with the motion to dismiss. This was within 

its discretion. 

In reviewing Continental’s submissions, we note some documents at 

most demonstrate that OEMs may seek to have Continental offset costs 

associated with licensing. “[A]s a potential contracting party, each [] is 

entitled to drive a hard bargain.” Wilkie v. Robbins, 551 U.S. 537, 558 (2007).

Once again, none of the documents indicate that an OEM has paid or will pay 

Avanci and Patent-Holder Defendants non-FRAND rates for a license. And 

none of the documents indicate that Continental has agreed or will agree to 

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indemnify OEMs for non-FRAND royalties paid to Avanci and PatentHolder Defendants. 

“This court f[inds] no overreaching to drive a hard bargain.” Twenty 

Grand Offshore, Inc. v. W. India Carriers, Inc., 492 F.2d 679, 682 (5th Cir. 

1974). Defendants-Appellees’ harm to Continental on account of 

Continental’s indemnity obligations to OEMs remains speculative.9

B. Refusal to License

Continental’s second theory of injury is that Avanci and PatentHolder Defendants have declined to provide Continental with a license on 

FRAND terms. The district court concluded that Continental pled a 

sufficient injury under this theory because “[t]he denial of property to which 

a plaintiff is entitled causes injury in fact.” Cont’l Auto. Sys., Inc. v. Avanci,

LLC, 485 F. Supp. 3d 712, 726 (N.D. Tex. 2020) (citing Castro Convertible 

Corp. v. Castro, 596 F.2d 123, 124 n.3 (5th Cir. 1979); HTC Corp. v. 

9 Meanwhile, the district court had no discretion to consider the new indemnity 

allegations that Continental made in its opposition to the motion to dismiss. As the district 

court explained:

Briefing may clarify unclear allegations in a complaint. Pegram v. Herdrich, 530 U.S. 

211, 230 n. 10 (2000). However, “it is axiomatic that a complaint cannot be 

amended by briefs in opposition to a motion to dismiss.” In re Enron Corp. Sec., 

Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011). Plaintiff 

cannot amend the [amended complaint], which only suggests the possibility that 

Plaintiff could be required to indemnify OEMs, with new factual allegations in its 

Response seemingly averring that it has already indemnified or will indemnify 

them.

Cont’l Auto. Sys., Inc. v. Avanci, LLC, 485 F. Supp. 3d 712, 725 (N.D. Tex. 2020). Notably, 

Continental had the opportunity to request leave to further amend its complaint and

incorporate such allegations—an opportunity that it expressly declined, later reconsidered, 

and ultimately forfeited. See infra note 13. It appears the new allegations in Continental’s 

opposition suffer from the same infirmities as those in the aforementioned submissions. 

Regardless, we join the district court in evaluating the harm that Continental actually pled, 

which is “conjectural and hypothetical.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 

(1992).

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Telefonaktiebolaget LM Ericsson, No. 18-CV-243, 2018 WL 6617795, at *4–5 

(E.D. Tex. Dec. 17, 2018); Servicios Azucareros de Venezuela, C.A. v. John 

Deere Thibodeaux, Inc., 702 F.3d 794, 800 (5th Cir. 2012)). According to the 

district court, Continental’s alleged unsuccessful attempts to obtain licenses 

on FRAND terms from Defendants-Appellees comprise an injury in fact 

conferring Article III standing.10 Id. at 727.

We disagree. Having reviewed the pleadings and relevant caselaw, we 

cannot conclude that Defendants-Appellees denied Continental property to 

which it was entitled and that Continental thereby suffered a cognizable

injury in fact.

i.

As our sister circuits have recognized, entities that create standardconforming products can be third-party beneficiaries under FRAND 

contracts between SSOs and SEP holders. See, e.g., Microsoft Corp. v. 

Motorola, Inc., 696 F.3d 872, 884 (9th Cir. 2012) (observing that Microsoft 

was a third-party beneficiary of the FRAND commitments made by Motorola 

to SSOs); Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 304, 313–14 (3d 

Cir. 2007) (observing that Broadcom was a third-party beneficiary of the 

FRAND commitments made by Qualcomm to SSOs). After all, FRAND 

obligations exist to protect the parties that must adopt a standard in order to 

conduct their business. 

However, Continental is conspicuously different from the parties that 

our sister circuits have identified as third-party beneficiaries. In Microsoft, 

10 Although Continental did not allege an unsuccessful attempt to obtain a FRAND 

license from Sharp, the district court held that Sharp’s “alleged agreement with the other 

Defendants to establish prices and refuse to license to Plaintiff at more favorable terms 

adequately pleads that Plaintiff has been injured by the Sharp Defendant” as well. Avanci, 

485 F. Supp. 3d at 726; see also supra note 7.

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third-party beneficiary Microsoft was itself a member of the SSOs that had 

negotiated FRAND contracts with Motorola. See Microsoft Corp. v. Motorola, 

Inc., 871 F. Supp. 2d 1089, 1092 (W.D. Wash. 2012), aff’d, 696 F.3d 872 (9th 

Cir. 2012) (“Microsoft and Motorola are both members of the Institute of 

Electrical and Electronics Engineers (‘IEEE’) and the International 

Telecommunication Union (‘ITU’).”). Meanwhile, in Broadcom, third-party 

beneficiary Broadcom was a direct competitor of SEP holder Qualcomm that

needed its SEP licenses to operate. See Broadcom, 501 F.3d at 304–05 (noting

that both Broadcom and Qualcomm develop chipsets that must license

Qualcomm’s FRAND-encumbered SEPs).

Continental is not similarly situated to Microsoft and Broadcom. The 

supplier does not claim membership in the relevant SSOs and, crucially, it

does not need SEP licenses from Defendants-Appellees to operate; Avanci 

and Patent-Holder Defendants license the OEMs that incorporate 

Continental’s products. No evidence suggests that Patent-Holder 

Defendants and SSOs intended to require redundant licensing of third parties 

up the chain, which is unnecessary to effectuate the purpose of the FRAND 

commitments and reduce patent hold-up. “[A] beneficiary of a promise is an 

intended beneficiary if recognition of a right to performance in the beneficiary 

is appropriate to effectuate the intention of the parties.” Restatement 

(Second) of Contracts § 302 (Am. L. Inst. 1981). Continental 

does not appear to be an intended beneficiary contractually entitled to a 

license on FRAND terms. And as an incidental beneficiary, it would have no

right to enforce the FRAND contracts between the Patent-Holder 

Defendants and the SSOs. Id. 

ii.

But assuming Continental is contractually entitled to a license on 

FRAND terms as a third-party beneficiary, the pleadings reflect that it has

suffered no cognizable injury. Put another way, even if Continental has rights 

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under FRAND contracts, the contracts have not been breached because the 

SEP holders have fulfilled their obligations to the SSOs with respect to 

Continental. The supplier acknowledges that Avanci and Patent-Holder

Defendants are “actively licensing the SEPs to the OEMs[,]” which means 

that they are making SEP licenses available to Continental on FRAND terms. 

As it does not need to personally own SEP licenses to operate its business, it 

has not been denied property to which it was entitled. And absent a “denial 

of property to which a plaintiff is entitled,” Continental did not suffer an 

injury in fact. Avanci, 485 F. Supp. 3d at 726.

In support of its holding that the denial of property to which 

Continental was entitled caused the supplier injury in fact, the district court 

cited three cases in which courts identified deprivations that conferred 

Article III standing. See Castro, 596 F.2d at 124 n.3 (observing that the denial 

of an employer’s alleged right under a group insurance contract to have 

proceeds paid to a legally correct beneficiary was a sufficient allegation of 

injury in fact); HTC, 2018 WL 6617795, at *4–5 (observing that the denial of 

an OEM’s alleged right to a SEP license on FRAND terms was a sufficient

allegation of injury in fact); Servicios, 702 F.3d at 800 (observing that the

denial of a corporation’s alleged right to commissions and profits deriving 

from an exclusive distributorship contract was a sufficient allegation of injury 

in fact). 

We certainly do not take issue with these standing determinations and

the core tenet of federal jurisdiction that “[i]njuries to rights recognized at 

common law—property, contracts, and torts—have always been sufficient 

for standing purposes.” Servicios, 702 F.3d at 800 (citing Erwin 

Chemerinsky, Federal Jurisdiction § 2.3, at 67–68 (6th ed. 

2012)). Rather, we reiterate that Continental, the Plaintiff-Appellant in this 

case, experienced no such injury. We also note that in none of the cases cited 

by the district court was there an allegation, like there is here, that the 

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plaintiff could otherwise receive the benefit of a right conferred by contract 

even if the contractual right was “denied” directly.

11

iii.

On the face of Continental’s complaint, there are no allegations that 

Patent-Holder Defendants have sued or threatened to sue Continental for 

infringing their SEPs. To the extent that Continental is alleging PatentHolder Defendants have sued or threatened to sue OEMs for infringement, 

requiring OEMs to accept an Avanci license on non-FRAND terms, the 

OEMs may find it easier to establish an injury in fact. See HTC, 2018 WL 

6617795 (holding that Ericsson, an OEM, had standing to bring a 

counterclaim against HTC for breaching its obligation to offer Ericsson a 

license on FRAND terms); see also Broadcom, 501 F.3d 297 (holding that a 

deceptive FRAND commitment to a SSO may constitute actionable 

anticompetitive conduct under the Sherman Act). Similarly, the SSOs may 

find it easier to establish an injury in fact if Patent-Holder Defendants 

breached the FRAND contracts that they entered into for incorporation into 

cellular standards by charging non-FRAND rates.

12 But these are not 

Plaintiffs-Appellants we have before us.

11 Avanci and Patent-Holder Defendants also argue that not having to take a license 

may allow Continental to produce its components at a lower cost. See Fed. Trade Comm’n 

v. Qualcomm Inc., 969 F.3d 974, 996 (9th Cir. 2020) (observing that a policy of providing 

“de facto licenses” to component suppliers “allow[s]” Qualcomm’s “competitors to 

practice Qualcomm’s SEPs (royalty-free) before selling their chips to downstream 

OEMs”).

12 And to the extent that suing SEP holders is impossible or undesirable, the SSOs 

could conceivably troubleshoot on the front-end, clarifying FRAND rates and providing 

explicit enforcement mechanisms in their operating documents.

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In sum, the district court erred in holding that Continental had Article 

III standing to bring its claims. Given that we lack jurisdiction, we do not 

reach the parties’ arguments as to antitrust standing and the merits.

13

V. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

VACATED. The case is REMANDED with instructions to DISMISS 

Continental’s claims for lack of standing.

13 While Continental states in its opening brief that the district court committed 

“error” in denying it leave to amend, Continental neither explains what the error was nor 

directly addresses the reasoning of the district court. “Given [Continental’s] failure to 

adequately brief this issue, [it] has [forfeited] it on appeal.” See Denson v. BeavEx, Inc., 

612 F. App’x 754, 759 (5th Cir. 2015) (per curiam) (citing Procter & Gamble Co. v. Amway 

Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) and Fed. R. App. P. 28(a)(8)(A)); see also 

Ortiz v. Am. Airlines, Inc., 5 F.4th 622, 627 (5th Cir. 2021) (observing that “allud[ing] to an 

argument” in a brief is not sufficient to avoid forfeiture of that argument). Continental’s 

attempt in its reply brief to clarify how further amendment would not prove futile does not 

save it from forfeiture. See Dominguez-Gonzalez v. Clinton, 454 F. App’x 287, 291 n.1 (5th 

Cir. 2011) (per curiam) (citing Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)). We also 

note that in the Rule 16 conference the district court expressly asked counsel for 

Continental, “[d]o you want to amend your pleadings?” and counsel responded, “our 

pleading is absolutely sufficient.” 

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